Mark Stebbing and Military Rehabilitation and Compensation Commission
[2014] AATA 948
•19 December 2014
[2014] AATA 948
Division Veterans' Appeals Division File Number
2014/1177
Re
Mark Stebbing
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 19 December 2014 Place Perth The decision under review is affirmed.
........................................................................
S D Hotop
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant served in Royal Australian Navy (RAN) from 1972 to 1995 – applicant suffered severe coronary artery disease and myocardial infarct in September 2012 – applicant claimed compensation for heart disease in July 2013 – Tribunal not satisfied the applicant’s severe coronary artery disease contributed to, to a significant degree, or at all, by his RAN service – applicant's severe coronary artery disease not a compensable injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5(2), s 5A(1), s 5B, s 14(1) and s 147(1)
REASONS FOR DECISION
Deputy President S D Hotop
19 December 2014
Introduction
Mark Stebbing (“the applicant”), who was born in April 1956, served in the Royal Australian Navy (“RAN”) from July 1972 to July 1995. He also rendered continuous full-time service in the Naval Reserve from August 2012 to August 2013.
On 11 July 2013 he lodged with the Department of Veterans’ Affairs (“DVA”) a completed “Claim for Rehabilitation and Compensation” form, dated 9 July 2013, whereby he claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for “Heart Disease” which happened on 12 September 2012 and for which he first received medical treatment on 13 September 2012.
On 7 December 2013 a delegate of the Military Rehabilitation and Compensation Commission (“the respondent”) made a determination under the SRC Act disallowing the applicant’s claim for compensation.
Following a request by the applicant for a reconsideration of the abovementioned determination, a Review Officer of the respondent made a “reviewable decision” under s 62 of the SRC Act on 20 February 2014 affirming that determination.
On 6 March 2014 the applicant lodged with the Tribunal an application for review of the reviewable decision of 20 February 2014.
The Evidence
The evidence before the Tribunal comprised the “T Documents” (T1–T15, pp 1–96) lodged with the Tribunal by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and:
·Exhibits A1–A3 tendered by the applicant;
·Exhibits R1–R3 tendered by the respondent; and
·the oral evidence of the applicant.
The Applicant’s Claim for Compensation
In his abovementioned claim for compensation, dated 9 July 2013, the applicant, in answer to the question: “What aspects of your employment do you think contributed to your disease or illness?”, stated:
“ High cholesterol, high blood pressure, lack of regular exercise, high fat diet, stress, high salt intake, low calcium, low potassium, low magnesium and high alcohol consumption.
See attached statement.” (T3, p 21)
The contents of the “attached statement” are as follows:
“ Between approximately 1972 and 1990 on various HMAS Ships and establishments my overall diet and lifestyle was poor and I believe contributed considerably to my present condition. All the now known and recognised causes of heart disease were a daily part of my Naval life.
The food available to me for consumption was high fat, high cholesterol and high salt. Low calcium (limited fresh dairy, eggs, fish, green vegetables or fruit), low potassium (no fresh bananas, tomatoes, oranges or peaches) and low magnesium (limited green vegetables, wholegrain cereals, nuts, beans or seafood).
I consider that I ‘worked hard’ and ‘played hard’ which was the norm for most sailors of my era. I worked under constant pressure to perform in a high stress environment/work place. Drank too much alcohol to compensate or as a result of peer group pressure and as a consequence I exercised very little.
Further, to support this claim, I am awaiting medical history records from my GP which will be forwarded to DVA in due course.” (T4)
Relevant Medical Evidence
The applicant’s service medical records
Extracts from the applicant’s service medical records are in evidence (T15, Exhibits R1 and R3). These records include the following relevant information:
·the applicant’s height was variously recorded as within the range of 173–178 cm;
·the applicant’s weight was variously recorded as within the range of 60–70 kg;
·the record of a Supplementary Health Examination on 28 June 1995, for the purpose of the applicant’s discharge from the RAN, records his height as 174.5 cm and his weight as 70 kg and his BMI (body mass index) as 22.98;
·a record of a pathology test, dated 13 May 1988, records a blood cholesterol level of 5.37 MMOL/L (within the normal range of 2.5–6.5);
·a report of Dr D M Peters, Consultant Haematologist, dated 24 June 1992, notes (inter alia) in relation to the applicant’s history:
“ …
He is a non-smoker and has no cardiovascular or respiratory symptoms. He drinks one to two glasses of spirits per week but there is no history of indigestion/dyspepsia. His appetite is good, his weight is steady, his bowels are regular and there are no constitutional symptoms …”.
Post-service medical evidence
Various documents regarding the applicant’s relevant medical condition in the period after his discharge from the RAN in 1995 are included in the T Documents and Exhibits. These are referred to below.
A pathology test report, dated 29 June 2009, records the following blood cholesterol levels for the applicant in three tests administered in 1998, 2006 and 2009:
·18 December 1998: cholesterol 6.2 mmol/L, HDL cholesterol 1.1 mmol/L, LDL cholesterol 4.7 mmol/L;
·22 August 2006: cholesterol 6.0 mmol/L, HDL cholesterol 0.9 mmol/L, LDL cholesterol 4.6 mmol/L;
·29 June 2009: cholesterol 5.4 mmol/L, HDL cholesterol 1.0 mmol/L, LDL cholesterol 3.3 mmol/L.
It is noted in that report that the normal blood cholesterol ranges are as follows:
·cholesterol < 5.5 mmol/L;
·HDL cholesterol > 1.0 mmol/L;
·LDL cholesterol < 3.5 mmol/L. (part of Exhibit R2)
In a Medical Examination Report, dated 18 November 2006, regarding a medical examination of the applicant for life insurance purposes:
·the applicant, in a medical history questionnaire, indicated that he had never had (inter alia):
- any heart or vascular disorder;
- high blood pressure;
- pain in the chest.
He also indicated that in a 50-year-old medical examination which he had in 2006, chest x-ray, blood sugar and cholesterol were “OK”. The medical examiner recorded the applicant’s height as 174 cm, his weight (clothed) as 76.4 kg, and his blood pressure as 120/70, and indicated that (inter alia):
·there was no abnormality of the peripheral arterial or venous circulation;
·he did not consider the heart and vascular system to be abnormal;
·the applicant was not presently on treatment for hypertension. (part of Exhibit R2)
Following a referral by Dr Jaspal Sembi, the applicant’s general practitioner, the applicant underwent blood pressure monitoring (for suspected hypertension) for a 24-hour period on 14–15 January 2011, and it was subsequently reported by Dr Nigel Sinclair, Cardiologist, that the findings regarding the applicant’s blood pressure for that period were “within normal limits”. (part of Exhibit A2)
Clinical notes regarding episodes of chest pain experienced by the applicant on 12 September 2012, his subsequent treatment at a RAN health facility, and his admission to Fremantle Hospital on 13 September 2012 are in evidence (part of Exhibit R1). A Fremantle Hospital Inpatient Discharge Letter describes the applicant’s “presenting problem” as follows:
“ 56 year old gentleman transferred from Navy HMAS following 3 episodes of chest discomfort with radiation to jaw. Lasted 30 minutes in duration associated with nausea and lightheadedness. Seen at the medical centre at Garden Island with troponin positive at 30. Given aspirin and GTN.”
and the “principal diagnosis” as: “NSTEMI” (non ST elevation myocardial infarct), and notes that the applicant was discharged with medications on 14 September 2012. (part of Exhibit R1)
Various reports and letters of Dr Michael Nguyen, Interventional Cardiologist, are in evidence (T5, T8, part of Exhibit R1). These reports and letters are referred to below.
A Cardiac Catheter Report of Dr Nguyen, dated 17 September 2012, refers to the applicant’s presentation “with a non ST elevation myocardial infarct for management”, describes the subsequent performance of angioplasty/stenting to the mid left circumflex artery, and concludes as follows:
“ CONCLUSION: Severe double vessel disease. Successful angioplasty and stenting to the mid left circumflex. Patient will be brought back electively to have angioplasty and stenting to the left anterior descending artery.” (T5, p 24)
A report of Dr Nguyen, dated 24 September 2012, refers to the applicant’s presentation “for elective angioplasty and stenting to a severely stenosed mid left anterior descending artery”, describes the subsequent performance of angioplasty/stenting, and concludes as follows:
“ CONCLUSION: Successful angioplasty and stenting to the mid LAD using a drug eluting stent. Patient should remain on aspirin and Plavix for at least 12 months.” (T5, p 25)
A letter of Dr Nguyen, dated 9 November 2012, which relates to the applicant and is addressed to The Medical Officer, HMAS Stirling Medical Centre, states as follows:
“ This is a letter outlining his recent visit to my rooms on 9/11/2012.
As you are aware Mark presented 6 weeks ago under my care with a non ST elevation myocardial infarct.
He was found to have severe coronary disease in his LAD and left circumflex arteries and both of these were treated with angioplasty and stenting.
Since then he has been stable and denies any further chest pain, nausea or cold sweats which are the symptoms he presented with during his myocardial infarct.
Currently he denies any fatigue or tiredness, or bruising or bleeding.
He is back at work full time without restriction.
His current medications include Crestor, Metoprolol, aspirin, Clopidogrel, Ramipril.
On examination today his blood pressure is 120/80 mmHG and his heart rate is 60 bpm and regular. He has dual heart sounds on auscultation with no murmurs and his lung fields are clear.
Overall Mark has made a very good recovery following his myocardial infarct. At this stage he will need to be maintained on aspirin and Plavix for at least 12 months. He will need aggressive risk factor management in the future to reduce the risk of further coronary disease progression.
I would appreciate your ongoing review of Mark with regards to his cardiovascular risk factors, and if you have any further queries regarding his care please do not hesitate to contact me directly.” (T5, p 28)
A letter of Dr Nguyen (undated), which relates to the applicant and is addressed to Dr Jaspal Sembi (the applicant’s general practitioner), states as follows:
“ This is a letter outlining Mark’s recent visit to my rooms on 27 September 2013.
As you are aware Mark presented under my care with a myocardial infarct 12 months ago. At that stage he was found to have severe disease in his LAD artery as well as left circumflex. He had successful angioplasty and stenting to both these vessels.
Since that time he has been relatively stable and denies any significant chest pain or SOB. Importantly when he had his myocardial infarct he never actually had chest pain. He only had some light headedness and sweatiness.
Mark has changed his lifestyle significantly. His diet has changed significantly and he is exercising regularly. He has lost 6 kg in weight since his myocardial infarct.
Currently he denies any bruising or bleeding or muscle aches and pains.
His current medications include Metroprolol 50 mg bd, Ramipril, Clopidogrel, Crestor, Aspirin.
On examination today BP is 135/85, HR is 60 and regular. Mark has dual HS on auscultation with no murmurs and lung fields are clear.
Overall Mark remains stable from a cardiovascular point of view. He is tolerating all his medications well. It has been 12 months since his myocardial infarct and I plan to stop his Clopidogrel at this time. He should be maintained on Aspirin lifelong.
I thank you again for your ongoing care of Mark with regards to his ongoing cardiovascular risk factors.
…” (part of Exhibit R1)
In response to a request from the DVA (T7), Dr Nguyen provided the following report, dated 25 November 2013, regarding the applicant:
“ This is a report regarding his overall condition with regards to his myocardial infarct in 2012.
Mark presented under my care in September 2012. He presented with some nausea and cold sweats. Serial blood tests revealed that he did have a non ST elevation myocardial infarct with an elevated Troponin level. He went on to have a coronary angiogram to investigate his symptoms further. This revealed that he had a severe stenosis of his mid LAD artery as well as an occluded left circumflex artery which was the culprit artery for his myocardial infarct. We went on to perform successful angioplasty and stenting to his left circumflex and then brought him back electively to have his LAD artery treated with further angioplasty and stenting. Mark remained stable throughout these procedures and made a very good recovery afterwards.
There is no doubt that he had a myocardial infarct during his presentation and this was confirmed with blood tests as well as a coronary angiogram revealing an occluded artery.
I last reviewed Mark in September 2013. At that stage Mark was stable and denied any chest pain or shortness of breath. He has been tolerating his medications well and has made a good recovery.
With regards to your letter contending [sic] whether Mark’s condition was related to ‘high cholesterol, high blood pressure, lack of regular exercise, high fat diet, stress, high salt intake, low calcium, low potassium, low magnesium and high alcohol intake’, following is my opinion regarding this.
Cardiovascular disease is a very common condition in patients who are at cardiovascular risk. These patients include those who have high cholesterol as well as hypertension, type II diabetes as well as patients who smoke. Patients with a very strong family history are also at increased risk. There is a correlation also between obesity as well as lack of exercise contributing to early development of coronary artery disease.
Having said this, patients do also suffer myocardial infarcts who are well and have no cardiovascular risk factors.
With regards to your specific points.
1 Whether he suffered from these conditions previously.
Mark reported that he was fairly healthy prior to his myocardial infarct. Since his myocardial infarct we have commenced him on multiple medications including the treatment of dyslipidaemia as well as antiplatelet treatment to reduce his risk of further coronary artery disease. This is standard treatment for patients who have had a myocardial infarct.
2. It is difficult for us to establish whether there are causal factors of his conditions that related to his ADF service. Given the fact that he reported that he never really had any other major medical issues prior to his myocardial infarct [sic]. It is also difficult to establish whether any disease pathology occurred prior to 2004. He did have underlying coronary artery disease and usually this is a slow process. His 90% stenosis of his LAD artery is likely to have progressed over a number of years.
3 With regards to aggravating factors there are issues like stress, smoking and diabetes which may aggravate his coronary artery disease.
At present he has recovered fully from his myocardial infarct and therefore his work capacity should not be affected.
Overall in summary, Mark did suffer from a myocardial infarct which was confirmed via blood tests as well as via coronary angiography which determined severe coronary artery disease with an occluded left circumflex artery as well as a severe stenosis of his LAD artery. Both of these arteries have been treated with angioplasty and stenting and he has been placed on appropriate medications following his myocardial infarct. These are standard medications including antiplatelet therapy as well as an antihypertensive agent and a cholesterol agent.
The last time I reviewed Mark in September 2013 he was stable and had lost 6.5 kg in weight. He was exercising and following a healthy diet. He was tolerating his medications well.
Our ongoing management would be aggressive risk factor control.
I hope this clarifies his overall medical condition.
…” (T8)
The Applicant’s Evidence
The applicant tendered in evidence a letter, dated 11 March 2014, which he had written to Dr Nguyen, and Dr Nguyen’s reply letter, dated 9 May 2014 (Exhibit A3).
The applicant’s letter to Dr Nguyen states as follows:
“ My name is Mark Stebbing and you performed a successful angioplasty and stenting in September 2012. My last review was in September 2013.
As a veteran with twenty three years service in the Royal Australian Navy I am endeavouring to claim recognition that my Navy service contributed to my heart disease condition. I am in the process of appealing the Department of Veterans Affairs (DVA) rejection of my claim.
The DVA rejected my claim, in part, based on your report (Tab A). The DVA highlighted certain extracts as evidence of your opinion in their decision (Tab B).
As allowed under the legislation, I asked the DVA to reconsider their decision (Tab C). The basis for me requesting reconsideration was I believed that you were ‘not sufficiently informed of my specific ADF service history and circumstances to be able to satisfactorily comment on my particular causal factors’.
The DVA has again denied liability for my heart disease (Tab D) and again sited [sic] observations made in your report (Tab A) as the reasons. Also stating, ‘… absent any specialist medical evidence establishing the requisite causal relationship between your claimed condition and your military employment’.
Simplistically I contend that serving in the Navy, and specifically during the time 1972 to 1990, whilst serving on various ships at sea and establishments ashore, I was subjected to most of the common risk factors for heart disease. High blood pressure, high blood sugar, lack of exercise, high cholesterol, lifestyle factors, the amount of stress and perhaps how I responded to that stress (alcohol) all caused by the diet and lifestyle that was available to me. I believe that it is probable and not merely possible that this period of military service contributed in a material degree to the cause of my disease. As I am now older these risks materialised into a heart attack in September 2012. To my knowledge I do not have a family history of heart disease. I wonder what else could have caused my heart disease.
In these types of documents I believe ‘phraseology’ to be very important. The DVA states ‘For your claim to be successful under the Act, the evidence has to show that it is probable, and not merely possible, that your military service contributed to a material degree to the causation, aggravation, acceleration or recurrence of the disease’.
May I respectfully impose on your valuable time by asking that you please review the documents attached.
If you consider it necessary, based on any new information contained herein, please update your original report (Tab A) or alternatively draft a new report with an emphasis on casual factors linked to my military service/circumstances and the probability that they contributed to my disease. Please reply to the address above.
If the attached information is not adequately conveyed or detailed enough or you require further information to enable you to make an informed opinion please advise. If you would prefer not to proceed any further with this matter please advise.
If you wish to be compensated for your valuable time I am more than willing to accept an invoice for payment.
For your consideration and thank you for your assistance in this matter.
…
Enclosures:
Tab A – A/Prof Nguyen Report dated 25 November 2013
Tab B - DVA Decision dated 7 Dec 2013
Tab C – M Stebbing Request for Reconsideration dated 13 Dec 2013
Tab D – DVA Reconsideration Decision dated 20 Feb 2014.”
[The Tribunal notes that each of the above enclosures is in evidence:
Tab A – T8 (set out in paragraph 19 above)
Tab B – T10
Tab C – T11
Tab D – T14.]
Dr Nguyen’s reply to the applicant’s letter states as follows:
“ RE: Your recent letter regarding upcoming appeal with DVA.
As you are aware I did write a letter to the Department of Veteran’s Affairs stating my opinion regarding your overall cardiac condition.
At this stage I am not keen to change any of this letter. It is my opinion that ischaemic heart disease is multifactorial and I cannot definitively state that your service with the navy was a causal and direct factor leading to your coronary artery disease.
I hope you understand my positon given the fact that coronary disease is a very common condition in our society.
If you have any further queries please don’t hesitate to contact me directly.”
The applicant also tendered in evidence the following document which he had filed as an attachment to his Statement of Facts, Issues and Contentions in this proceeding on 21 November 2014:
“ Work Related Stress
What ship were you posted on during each period? The periods in which you experienced service related stress. What role did you occupy? HMAS DUCHESS Sep 1974 – Sep 1977 Boiler Room watch keeper, Engine room watch keeper, Diesel engine watch keeper. HMAS TORRENS Sep 1977 – May 1982 Boiler Room watch keeper, Engine room watch keeper, Diesel engine watch keeper. HMAS SUPPLY April 1984 – Dec 1985 Boiler Room watch keeper, Engine room watch keeper, I/C Cargo section/Refuelling At Sea evolutions. HMAS TOBRUK May 1988 – Dec 1988 I/C propulsion section. HMAS KUTTABUL Dec 1988 – Jan 1990 Sea Training Group leader What aspects of your service do you relate the stress to?
To get an understanding of what is involved in carrying out these roles/duties you would need a knowledge and appreciation of the situations, the environment and the dangers. I am not clever enough to be able to describe all these details effectively in writing. It would be a small compartment below the water line in the middle of the ship. It would be very hot, dark, smelly, very noisy, surrounded by machinery , pumps, boilers, turbines, engines, motors, fans, hot pipes, steam, fuel, etc and the constant tension to start/stop/adjust/maintain all/some these [sic] various machines, be aware of the dangers/risks as well as train the other watch keepers was continual for four hours twice a day. As your knowledge increased, over time, so did your responsibilities until you were in charge of the whole space (Boiler Room HMAS DUCHESS) or the entire watch below (Engine Room HMAS TORRENS/SUPPLY). With added responsibility came added tension/pressure/stress. Not only would you be responsible for the safe and efficient operation of all the machinery but you were also accountable for the safety of the people on watch around you. The persistent risks in this environment were fires, floods, machinery breakdowns, etc. Personnel risks were burns, slips/falls, heat stress, toxic gases etc. Added to this was the realisation that the ship carried two hundred other people and it was your job to keep it moving across the sea and keep all the services available.
Some of the above was at times a shared responsibility but that did not diminish my individual tension/stress. Whole ship navigation hazardous situations only increased the pressure/concentration eg entering/leaving harbour, coming along side of a wharf, etc. Also starting up and shutting down the plant/machinery was a particularly dangerous time if not done correctly. Training and knowledge/experience helped you to do your job well but there was no training for stress relief you just tried to battle on through for the watch.
When did you first notice you were feeling stressed?
I think it was soon after joining HMAS DUCHESS. I would get migraines. Then it progress [sic] into tension or apprehension type headaches depending on the situations.
Did you report it and to whom?
I reported having migraines attributed to stress. To my immediate supervisors. Also at discussions with ship mates, peers and medics on the occasions of formal medicals.
Did you seek treatment for the symptoms you were experiencing? Please provide details of this treatment, if any.
Not formal treatment as such because the more senior members all told me that it was just how things were, stress was an integral part of your work. You just had to get used to it if you wanted to progress with your career. The stress didn’t appear to me at the time as a severe issue as I believed it was only occurring at various situations as described above.
How did you cope with your symptoms?
At times I just got on with the job and put up with the headaches. At other times, if possible I would go to bed and lay down. To alleviate the symptoms I believe that I, at times, drank alcohol as a way to manage/escape the stress. At the time I thought that I was just being social by drinking after a stressful day or needing a drink to relax or de-stress.” (part of Exhibit A2)
The applicant prepared a statement, dated 21 November 2014, for the purpose of this proceeding, as follows:
“ I joined the Royal Australian Navy in July 1972 as an Apprentice Technician. I served at sea on various commissioned ships and ashore in establishments and Commands across Australia. I left the RAN with the rank of Warrant Officer in July 1995 having completed twenty three years service. I remained a member of the Navy Reserve. I joined the Australian Public Service Department of Defence in August 1995 at HMAS STIRLING WA. In August 2012 I rejoined the Navy at HMAS STIRLING as a member of the Active Reserve on Continuous Full Time Service. This engagement completed in August 2013.
On the 12th September 2102 I suffered a myocardial infarct. I sought treatment at the Navy Health Centre and was transported to Fremantle Hospital on 13th September. I was assessed and admitted. I was seen be [sic] various Drs and specialists including Dr M Nguyen. We had a brief conversation about my immediate medical condition and it was agreed that I should be transferred to the Mount Hospital under his care. I was admitted to the Mount Hospital on the 15th September. Dr Nguyen performed a coronary angiogram, angioplasty and stenting on 17th September. I was discharged from the Mount on the 18th September. I was re-admitted to the Mount again on the 24th September for a second angioplasty and stenting on another artery. I was discharged from the Mount on the 25th September. Over this period I had few conversations with Dr Nguyen and at no stage did we engage on any details of my previous military service, circumstances or long past medical history. We focused in detail about my immediate condition, treatment plan and short term outlook. Was I likely to have another heart attack or die?
I made a claim on 9th July 2013 under the SRCA in relation to my condition, heart disease. This claim was disallowed on the 7th December 2013. On the 13th December 2013 I asked for that decision to be reconsidered. I supported my request with further detailed information of my military service and circumstances. Also a full critique of a report by Dr Nguyen dated 25th November 2013 which the delegate relied upon in forming a decision. The MRCC delegate affirmed the earlier decision in a response dated 20th February 2014.
I made an application on 5th February 2014 to the AAT for a review of Decision.” (Exhibit A1)
In cross-examination the applicant acknowledged that in his service medical records for the period of his RAN service from 1972 to 1995:
·there is no record of his having a high blood cholesterol level;
·there is no record of his having a high blood sugar level;
·there is no record of his having high blood pressure.
He also acknowledged that the earliest record of his having a high blood cholesterol level was in December 1998.
The applicant confirmed that he had completed a MetLife medical history questionnaire on 18 November 2006 and that his medical examiner for that purpose on that occasion was his general practitioner, Dr Sembi. He acknowledged that his weight was recorded on that occasion as 76.4 kg (clothed) and that, as a general proposition, he had “put on weight” after he was discharged from the RAN (his weight on discharge being recorded as 70 kg).
The Relevant Legislation
Pursuant to ss 14(1) and 147(1) of the SRC Act, the respondent is “liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment”.
The word “injury” is defined in s 5A(1) of the SRC Act to mean (relevantly):
“ (a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;”.
The word “disease” is defined in s 5B(1) of the SRC Act to mean:
“ (a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.”
and the phrase “significant degree” is defined in s 5B(3) to mean:
“ a degree that is substantially more than material.”
The words “ailment” and “impairment” are defined in s 4(1) of the SRC Act as follows:
“ ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“ impairment means the loss, the loss of the use, or the damage or malfunction of any part of the body or of any bodily system or function or part of such system or function.”
Section 5(2) of the SRC Act provides that “a member of the Defence Force … shall, for the purposes of this Act, be taken to be employed by the Commonwealth”, and continues (relevantly):
“ and the person’s employment shall, for those purposes, be taken to be constituted …, by the person’s performance of duties as such a member of the Defence Force …”
The Tribunal notes that, in the period from 1 December 1988 to 12 April 2007, the word “disease” was defined in s 4(1) of the SRC Act to mean:
“ (a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
The Tribunal also notes that, in the period from 1 September 1971 to 30 November 1988, the operative corresponding legislation was the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“1971 Act”) which provided for Commonwealth liability to pay compensation to an employee in respect of the contraction or aggravation of a “disease” where “any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation …” (ss 27(1), 29(1), (2)).
Analysis
The relevant physical condition
It is common ground that the physical condition suffered by the applicant, which is the subject of his present claim for compensation, is appropriately described as “severe coronary artery disease”. On the basis of the reports and letters of Dr Nguyen, set out in paragraphs 15–19 above, the Tribunal is satisfied, and finds, that the applicant has suffered “severe coronary artery disease”.
As regards the date on which the applicant suffered “severe coronary artery disease”, the Tribunal is satisfied, on the basis of the clinical notes and Fremantle Hospital Inpatient Discharge Letter referred to paragraph 13 above, and the abovementioned reports and letters of Dr Nguyen, that the applicant suffered that condition on 12 September 2012 which precipitated a myocardial infarct on 12–13 September 2012, and it so finds.
The Tribunal notes, however, Dr Nguyen’s comments, in his report of 25 November 2013 (T8 – set out in paragraph 19 above), that the applicant had “underlying coronary artery disease” and that the “90% stenosis of his LAD artery is likely to have progressed over a number of years”.
Is the applicant’s severe coronary artery disease a compensable “injury” under s 14(1) of the SRC Act?
In terms of the definition of “injury” in s 5A(1) of the SRC Act, the Tribunal is satisfied that the applicant’s severe coronary artery disease is neither “an injury (other than a disease)” nor “an aggravation of a physical … injury (other than a disease)”, within the meaning of para (b) and para (c), respectively, of that definition.
Accordingly, the matter for the Tribunal’s determination is whether the severe coronary artery disease suffered by the applicant on 12 September 2012 is a “disease”, within the meaning of para (a) of the definition of “injury” in s 5A(1) of the SRC Act. The Tribunal will be so satisfied if that condition meets the definition of “disease” in s 5B(1) of the SRC Act.
In terms of the definition of “disease” in s 5B(1) of the SRC Act, the Tribunal is satisfied that the severe coronary artery disease suffered by the applicant on 12 September 2012 is either “an ailment suffered by an employee” or “an aggravation of such an ailment” (being an aggravation of existing coronary artery disease), within the meaning of para (a) or para (b) , respectively, of that definition.
The critical matter for the Tribunal’s determination, therefore, is whether the severe coronary artery disease suffered by the applicant on 12 September 2012 “was contributed to, to a significant degree, by [his] employment by the Commonwealth”. It is common ground, and the Tribunal accepts, that the applicant's “employment by the Commonwealth”, for the present purposes, comprises his RAN service from July 1972 to July 1995.
The applicant’s chief contentions are set out in his Statement of Facts, Issues and Contentions, which he filed in this proceeding on 21 November 2014, as follows:
“4.3 I contend that I started to develop heart disease whilst serving in the Navy (1972 – 1995) due to my exposure to a number of the now accepted heart disease risk factors (refer to the National Heart Foundation of Australia). There is no single thing that causes coronary artery disease, but in my case there are several risk factors that contributed to it such as diet, blood pressure and being physically inactive. I had a high saturated fat, low fibre and high salt diet. Contributors to high blood pressure include stress, lack of exercise, a diet high in salt and heavy drinking (T11). I contend that the environment and circumstances of my military service contributed to the onset/development of heart disease. For example, work pressure/situations create stress, stress creates hypertension and hypertension is a causal factor of heart disease. Attachment 1 is a brief synopsis of aspects and circumstances of my work related stress. [The Tribunal notes that this attachment is set out in paragraph 23 above.]
4.4I contend that the medical report (T8 dated 25 Nov 13) of Dr Nguyen is only accurate in relation to my diagnosis, treatment and care post heart attack. I contend that Dr Nguyen’s opinion, with regard to causal factors and any relationship to my military service, was not based on a fully informed examination of my service history and circumstances. Dr Nguyen had not received an accurate description of any essential aspects when he committed to his opinion. This report should not be relied upon as evidence that there is no link between my military service and my heart disease. The report (T8) pre dates my request for Reconsideration (T11) dated 13 Dec 13. This is my detailed critique of Dr Nguyen’s report T8) which contains more detailed information on my military service. Dr Nguyen was not aware of the contents of T11 until I forwarded it to him in March 2014.”
In his request for reconsideration dated 13 December 2013 (T11), the applicant made the following statements regarding his diet and alcohol consumption during his RAN service:
“ The decision to disallow my claim is partly based on sweeping generalisations especially in relation to the ‘range of food choices’. On reflection I would say that the range of food choices as only between a high fat dish or a high salt dish.
For adequate calcium I required milk/dairy, eggs, fish, green vegetables or fruit. Onboard ship these were always not fresh or in short supply. Fish would be deep fried and battered. Fruit was tinned and so was high in sugar. For adequate potassium I required bananas, tomatoes, oranges or peaches. I have never seen a fresh banana onboard a ship. Tomatoes and peaches were tinned and high in salt and sugar. Oranges were always in short supply. For adequate magnesium I required green vegetables, whole grain cereals, nuts, beans or seafood. Vegetables onboard ships were always not fresh or in short supply. Seafood was only ever fish. Breakfast, lunch and dinner meals consisted of high fat, high cholesterol, low fibre, low calcium combinations or choices. High fat meats cooked in fat/oil, deep fried with potatoes/chips. Breakfast cereals were high sugar low fibre.
I have no objective quality evidence to substantiate any of the above statements about food. It is purely anecdotal. That is my biggest difficulty, but I do have heart disease (of that there is no dispute). Also there is no dispute that a poor diet over an extended period contributes to heart disease. As a child/adolescent I ate healthy food/meals because it was available to me. That was not the case between 1972 and 1990.
…
With regard to my alcohol consumption during that period I think the delegate may have misunderstood my intention and context in my claim. Or more likely that I was not clear enough. Simplistically, the point I wish to make is; I drank because I was stressed. I was stressed because of my work/service. There is the link between heart disease and service. My response to stress was alcohol. Double whammy, stress and alcohol are both proven contributors to heart disease. All this accepted, alcohol is only one of the contributing factors to my disease.” (T11, p 43)
The Tribunal’s task is to make its determination regarding the existence, or non-existence, of a causal relationship between the severe coronary artery disease suffered by the applicant on 12 September 2012 and his RAN service from July 1972 to July 1995 on the basis of the whole of the relevant evidence before it.
There is, however, a paucity of medical evidence before the Tribunal which relates to the question whether there is a causal relationship between the severe coronary artery disease suffered by the applicant on 12 September 2012 and his RAN service from July 1972 to July 1995. That evidence comprises:
·the extracts from the applicant’s service medical records referred to in paragraph 8 above; and
·Dr Nguyen’s report of 25 November 2013 set out in paragraph 19 above.
The medical evidence referred to in paragraph 42 above does not support the proposition that there is a causal relationship between the applicant’s RAN service in 1972–1995 and the severe coronary artery disease suffered by the applicant on 12 September 2012.
As regards the abovementioned extracts from the applicant’s service medical records, there are no records which might indicate that the applicant presented an abnormally high risk of coronary artery or cardiac disease, for example, records of his being overweight, having an abnormally high body mass index, having an abnormally high blood cholesterol level, having an abnormally high blood sugar level, or having hypertension. On the contrary, the relatively few records of such matters as are in evidence (referred to in paragraph 8 above) indicate that, on the dates of the relevant medical examinations/tests, the applicant was not overweight, his body mass index was not abnormally high, and his blood cholesterol level was within the normal range. Furthermore, Dr Peters’ report of 24 June 1992 describes an unremarkable history with no reference to any indicators or risk factors for coronary artery or heart disease.
Furthermore, Dr Nguyen, in his report of 25 November 2013, was not prepared to express the opinion that there is a causal relationship between the applicant’s severe coronary artery disease and his RAN service. The Tribunal notes the applicant’s contention that Dr Nguyen did not discuss with him the aspects of his RAN service (including diet, stress, high blood cholesterol, lack of exercise, high blood pressure) which may have contributed to his severe coronary artery disease and that, for that reason, Dr Nguyen’s report “should not be relied upon as evidence that there is no link between [his] military service and [his] heart disease”. The Tribunal also notes, however, that the applicant, by letter dated 11 March 2014, provided that information to Dr Nguyen and requested him to provide a further report on that basis, but that Dr Nguyen, by letter dated 9 May 2014, informed the applicant that he was not willing to alter his report of 25 November 2013, adding:
“ It is my opinion that ischaemic heart disease is multifactorial and I cannot definitively state that your service with the navy was a causal and direct factor leading to your coronary artery disease.” (Exhibit A3 - see paragraphs 21–22 above)
The Tribunal accepts the applicant’s contention to the effect that Dr Nguyen’s report of 25 November 2013 does not constitute evidence to the effect that there is no causal relationship between the applicant’s severe coronary artery disease and his RAN service. In the Tribunal’s opinion, Dr Nguyen’s report of 25 November 2013 and his abovementioned letter of 9 May 2014 constitute evidence which supports the proposition that it is possible that the applicant’s RAN service in 1972–1995 was a contributing factor to his suffering severe coronary artery disease on 12 September 2012, but do not go so far as to support the proposition that it is probable (that is, likely) that the applicant’s RAN service in 1972–1995 was a contributing factor to his suffering severe coronary artery disease on 12 September 2012.
Although the applicant has strongly asserted that, on the balance of probabilities, there is a causal relationship between aspects of his RAN service in 1972–1995 (including his diet, high blood cholesterol, stress, lack of exercise, high blood pressure) and his suffering severe coronary artery disease on 12 September 2012, he has not presented any medical evidence in support of that assertion. On the contrary, as previously mentioned, the medical evidence which is before the Tribunal does not support that assertion. In those circumstances the Tribunal is not satisfied, on the balance of probabilities, that there is a causal relationship between the applicant’s RAN service in 1972–1995 and the severe coronary artery disease suffered by him on 12 September 2012.
Conclusion
The Tribunal is not satisfied, on the balance of probabilities, that the severe coronary artery disease suffered by the applicant on 12 September 2012 “was contributed to, to a significant degree, by [his] employment by the Commonwealth”, within the meaning of s 5B(1) of the SRC Act.
The Tribunal determines, therefore, that the severe coronary artery disease suffered by the applicant on 12 September 2012 is not a “disease” as defined in s 5B(1) of the SRC Act.
The Tribunal notes that, in the decision under review, the Review Officer applied the “material contribution” test of causation which appeared in the definition of “disease” which, prior to 13 April 2007, was included in s 4(1) of the SRC Act. For the sake of completeness, therefore, the Tribunal also notes that it is not satisfied that the severe coronary artery disease suffered by the applicant on 12 September 2012 “was contributed to in a material degree by [his] employment by the Commonwealth”, within the meaning of the definition of “disease” which was formerly included in s 4(1) of the SRC Act.
Furthermore, the Tribunal notes that, had there been medical evidence before it that the applicant contracted coronary artery disease in the period from 1972 to November 1988, the Tribunal would not have been satisfied, on the basis of the evidence before it, that the applicant’s employment by the Commonwealth “was a contributing factor to the contraction of [that] disease” within the meaning of s 29(1) of the 1971 Act.
The Tribunal determines, therefore, that the severe coronary artery disease suffered by the applicant on 12 September 2012 is not an “injury” as defined in s 5A(1) of the SRC Act.
Accordingly, the Tribunal concludes that the severe coronary artery disease suffered by the applicant on 12 September 2012 is not a compensable “injury” under s 14(1) of the SRC Act.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ........................................................................
Administrative Assistant
Dated 19 December 2014
Date of hearing
9 December 2014
Applicant
In person (unrepresented)
Counsel for the Respondent
Mr B Dube
Solicitors for the Respondent
Sparke Helmore
Key Legal Topics
Areas of Law
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Compensation Law
Legal Concepts
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Compensatory Damages
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Causation
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Unconscionable Conduct
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